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Judicial Nominee Faces Specter Factor

Senate panel narrowly backs Carolyn Kuhl, but a key GOP lawmaker says he could defect to 'no' side because of her handling of a case.

May 09, 2003|David G. Savage | Times Staff Writer

WASHINGTON — Los Angeles Superior Court Judge Carolyn B. Kuhl won narrow, tentative support from the Senate Judiciary Committee on Thursday, as one key Republican said he had not decided whether to vote for her final confirmation to the U.S. 9th Circuit Court of Appeals.

All 10 Republicans voted to send President Bush's nomination to the Senate floor; all nine Democrats voted against her.

But Sen. Arlen Specter (R-Pa.), a moderate and a maverick, said he was troubled by Kuhl's handling of the case of a breast cancer patient whose doctor let a drug company salesman observe her examination.

Kuhl threw out the patient's privacy claim against the doctor in 1999.

"There must be a reasonable expectation of privacy [under] the circumstances," the judge said from the bench. "Here, when the patient has not objected, I think it cannot be said that there was a reasonable expectation of privacy."

The patient, Azucena Sanchez-Scott, had disrobed to be examined and assumed that the third person in the room was a medical specialist, not a drug company salesman.

"I've got great concerns about this situation," Specter said, recounting Kuhl's decision in the Sanchez-Scott case. "It's the kind of lapse of judgment that gives me great pause. I'm not committed as to how I will vote on the floor."

Last month, Kuhl noted that she had allowed the patient to sue the doctor for not asking her consent to have the outside observer present.

Nonetheless, several Democrats called her decision on the privacy issue "startling." They noted that the California appellate court had no difficulty concluding unanimously that she was wrong.

Specter's comments created a new uncertainty for Kuhl's final approval. No date has been set for a floor vote, and since Republicans hold a 51-seat majority in the Senate, they cannot afford defections.

And Specter has famously defected before. In 1987, he played a key role in the defeat of Judge Robert H. Bork's nomination to the U.S. Supreme Court.

While the sharply divided panel argued back and forth Thursday -- with the Democrats doing most of the talking -- their votes told another tale.

Bush's other nominee to the 9th Circuit, Judge Consuelo Callahan of the state appellate court in Sacramento, won approval on a 19-0 vote.

A former prosecutor in Stockton, Callahan, 52, was appointed a Superior Court judge and then a state appellate judge by former Gov. Pete Wilson.

Bush has put two other judges on the 9th Circuit. Last year, Richard Clifton of Hawaii won a 98-0 confirmation. And in March, Jay S. Bybee, a University of Nevada, Las Vegas law professor and a lawyer in the Bush Justice Department, was approved by the Senate on a 74-19 vote.

On Thursday, meanwhile, the panel also approved the nomination of Washington attorney John G. Roberts on a 16-3 vote.

Hours later, the full Senate gave Roberts final approval on a voice vote. A well-respected advocate before the Supreme Court, he will take a seat on the U.S. court of appeals for the District of Columbia.

Bush's other choice for that court, Washington lawyer Miguel A. Estrada, has been blocked by a Democratic filibuster.

The contentious squabbling over Kuhl raised the possibility that she too will face a filibuster on the Senate floor.

On Thursday, a senior administration official said the White House remains concerned about the slow pace of Senate action on the president's judicial nominees. Bush intends to speak on the issue today during a visit to South Carolina.

"The judicial process is broken and must be fixed," the official said. "The Senate of the United States has a constitutional responsibility to vote on judicial nominees."

In Kuhl's case, Sen. Patrick J. Leahy (D-Vt.) said it would be unprecedented for the Senate to approve a judge who is opposed by both her home-state senators.

During the Clinton administration, he said, the Republicans allowed a single senator --sometimes without revealing his name -- to block a vote on one of the president's proposed judges.

"Now, you have both senators from California opposed to this nominee," Leahy said. "If we are going to show any consistency, this nominee should be held in limbo."

Sen. Dianne Feinstein (D-Calif.) said she decided to oppose Kuhl only after reading her opinions and questioning the judge during and after last month's hearing.

"The question for me was whether a judge with a history of taking extreme activist positions should be granted lifetime tenure," she said.

"She argued for extreme positions and extreme changes in the law on the most divisive of social issues facing the country," Feinstein added, referring to Kuhl's record as a lawyer in the Reagan administration.

While she lauded Kuhl, 50, for having a "very respectable tenure as a Superior Court judge," Feinstein said she was troubled by some of her decisions -- and by Kuhl's explanations of them.

"I'm bothered by misleading answers she gave this committee," Feinstein said.

"My office has received a torrent of calls against Judge Kuhl." In all, 21,367 faxes, calls, letters and postcards opposed Kuhl, while 114 letters and phone calls supported her, she added.

Chairman Orrin G. Hatch of Utah was the only Republican besides Specter to speak at the hearing; he also said he was concerned by Kuhl's handling of the Sanchez-Scott privacy case.

"It's a troubling case, but the law was unclear at best. The [California] Court of Appeals has now clarified the law," Hatch said.

"This is only one case, and it's not indicative of her record. Judge Kuhl is seen by her colleagues as fair, careful, cautious and scholarly. She has the overwhelming support of the Los Angeles legal community."

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Times staff writer Maura Reynolds contributed to this report.

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